[Federal Register Volume 77, Number 143 (Wednesday, July 25, 2012)]
[Rules and Regulations]
[Pages 43488-43492]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-18157]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Part 376
[Docket No. RM12-13-000; Order No. 765]
Continuity of Operations Plan
AGENCY: Federal Energy Regulatory Commission, DOE.
ACTION: Final rule.
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SUMMARY: In this rule the Commission revises its regulations pertaining
to its Continuity of Operations Plan to allow the Commission the
discretion to better address not only long-term and catastrophic events
but also short-term events including loss of power or water. The rule
allows for greater discretion regarding: the activation and
deactivation of the Continuity of Operations Plan and any suspension of
Commission operations; the length of time that the Continuity of
Operations Plan is in effect and the length of time that Commission
operations are suspended; the deactivation schedule and the resumption
of full Commission operations; and the rescheduling of hearings,
conferences and meetings. The rule also adds items to the list of
requirements which are suspended when Commission operations are
suspended.
DATES: Effective Date: The rule will become effective July 25, 2012.
FOR FURTHER INFORMATION CONTACT: Elizabeth Molloy, Office of the
General Counsel, Federal Energy Regulatory Commission, Room 102-67, 888
First St. NE., Washington, DC 20426, (202) 502-8771. Lawrence R.
Greenfield, Office of the General Counsel, Federal Energy Regulatory
Commission, Room 102-15, 888 First St. NE., Washington, DC 20426, (202)
502-6415.
SUPPLEMENTARY INFORMATION:
Before Commissioners: Jon Wellinghoff, Chairman; Philip D. Moeller,
John R. Norris, Cheryl A. LaFleur, and Tony T. Clark.
Final Rule
(Issued July 19, 2012)
I. Introduction
1. The Commission's regulations pertaining to its Continuity of
Operations Plan (COOP) were originally developed to address emergency
conditions lasting up to 30 days during which Commission headquarters
operations are disrupted or communications are unavailable, either of
which may prevent the public or the Commission from meeting regulatory
or statutory requirements.\1\ Events such as the power outage and
earthquake that affected Commission headquarters operations in 2011
show that the Commission's regulations pertaining to its COOP need to
address a wide range of disruptions during which the Commission's
headquarters is unable to function, either in whole or in part, in the
ordinary manner. Accordingly, this Final Rule revises the Commission's
regulations pertaining to its COOP to better address not only longer
term and catastrophic events, but also shorter term events such as loss
of power or water.
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\1\ More information concerning the COOP can be found on the
Commission's Web site at www.ferc.gov/coop.asp.
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II. Discussion
2. The Commission, in this Final Rule, adopts revisions to its COOP
regulations. In doing so, however, the Commission emphasizes that its
goal in the event of an emergency is to continue operations in as
normal a manner as circumstances allow,\2\ and, where a full or partial
suspension of agency operations does occur, to return to full, normal
operations as quickly as possible.
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\2\ For example, teleworking may allow certain Commission
functions to continue in particular circumstances as if there had
been no or only limited disruption to Commission headquarters
functions. As appropriate in particular circumstances, such
functions may include, for example, participation by Commission
Trial Staff in informal settlement conferences and discussions in
those proceedings that have been set for trial-type evidentiary
hearing and/or settlement judge procedures.
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3. With this approach in mind, this Final Rule revises the
Commission's COOP regulations to allow greater discretion to respond to
the varying situations which may disrupt Commission headquarters
functions.\3\ This Final Rule recognizes that Commission headquarters
operations may be temporarily disrupted in whole or in part, or
communications with Commission headquarters may be temporarily
unavailable, in whole or in part, due to a variety of causes and for
periods of varying length depending on
[[Page 43489]]
the cause. Accordingly, this Final Rule allows for the activation of
the COOP and, following such activation, for the suspension of
Commission operations, in whole or in part, as appropriate, in a
variety of emergency situations, including situations such as loss of
power or water.
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\3\ Notwithstanding the revisions to the Commission's COOP
regulations adopted here, the Commission's goal in the event of an
emergency that requires a full or partial suspension of agency
operations is to return to full, normal operations as quickly as
possible.
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4. Currently, the COOP can be activated for a period of varying
length up to 30 days. This Final Rule explicitly provides that the
Chairman (or the Chairman's delegate, pursuant to section 376.205 of
the Commission's regulations,\4\ as appropriate) may activate the COOP,
and, following activation of the COOP, suspend Commission operations in
whole or in part.\5\ The Final Rule also explicitly provides that the
Chairman (or the Chairman's delegate) may shorten the time during which
the COOP is activated to less than 30 days, and the Commission (or the
Commission's delegate pursuant to section 376.204 of the Commission's
regulations,\6\ as appropriate) may extend the time during which the
COOP is activated to beyond 30 days, and that the Chairman (or the
Chairman's delegate) may similarly shorten any suspension of Commission
operations, and the Commission (or the Commission's delegate) may
similarly extend any suspension of Commission operations. This Final
Rule further explicitly provides time for the Commission to transition
from the period when the COOP is active, and when Commission operations
are suspended in whole or in part, to a return to full Commission
functionality and normal operations.\7\ To aid this transition, this
Final Rule not only provides time for such transition but also
explicitly provides that the Chairman (or the Chairman's delegate) may
deactivate the COOP and may resume Commission operations either
simultaneously for all activities, or activity by activity gradually
over time, as the Chairman (or the Chairman's delegate) determines to
be appropriate, in order to better manage the return to full Commission
functionality and normal operations.
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\4\ 18 CFR 376.205.
\5\ 42 U.S.C. 7171(c) (the Chairman ``shall be responsible on
behalf of the Commission for the executive and administrative
operation of the Commission''); accord 18 CFR 376.205 (the Chairman
is ``administrative head'' of the Commission); cf. 42 U.S.C. 7171(h)
(the Commission may sit anywhere in the United States).
\6\ 18 CFR 376.204.
\7\ The revised regulations do so by, among other things,
providing a 14-day period when certain deadlines and activities
continue to be held in abeyance notwithstanding the deactivation of
the COOP; this 14-day period will allow a smooth transition from
suspension of Commission operations to full Commission functionality
and normal operations.
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5. This Final Rule revises the timing of when filings are due and
when the Commission must act, in the event of a suspension of
Commission operations. This Final Rule also adds to the existing list
of requirements which are suspended during a suspension of Commission
operations several matters that were either inadvertently left out of
prior Final Rules or were only implicitly covered, including: (1)
comments responding to notices of inquiry; (2) responses to deficiency
letters; (3) notices of intent to file new applications and
applications for new licenses pursuant to section 15 of the Federal
Power Act; (4) requests for rehearing of orders or letter orders issued
by the Commission or its delegate; and (5) certain submittals by the
Electric Reliability Organization.
6. This Final Rule further explicitly provides that administrative
law judges and the Commission may reschedule hearings, conferences, and
other meetings after the resumption of Commission operations following
the suspension of those operations.
III. Regulatory Flexibility Act Certification
7. The Regulatory Flexibility Act of 1980 (RFA) \8\ generally
requires a description and analysis of Final Rules that will have a
significant economic impact on a substantial number of small entities.
This Final Rule concerns a matter of internal agency procedure and it
will not have such an impact. An analysis under the RFA is not
required.
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\8\ 5 U.S.C. 601-12.
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IV. Information Collection Standard
8. Office of Management and Budget (OMB) regulations require OMB to
approve certain information collection requirements imposed by agency
rule.\9\ This Final Rule contains no new information collections.
Therefore, OMB review of this Final Rule is not required.
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\9\ 5 CFR 1320.12.
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V. Environmental Analysis
9. 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. Excluded
from this requirement are rules that are clarifying, corrective, or
procedural or that do not substantially change the effect of the
regulations being amended.\10\ This rule is procedural in nature and
therefore falls within this exception; consequently, no environmental
consideration is necessary.
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\10\ 18 CFR 380.4(a)(2); Regulations Implementing the National
Environmental Policy Act, Order No. 486, 52 FR 47897 (Dec. 17,
1987), FERC Stats. & Regs. ] 30,783 (1987).
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VI. Document Availability
10. 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 the Commission's Home Page (http://www.ferc.gov) and
in the Commission's Public Reference Room during normal business hours
(8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE., Room 2A,
Washington, DC 20426.
11. From the Commission's Home Page on the Internet, this
information is available in 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 (i.e., the subdocket
number--e.g., 000, 001, 002, etc.) in the docket number field.
12. User assistance is available for eLibrary and the Commission's
Web site during normal business hours. For assistance, please contact
Online Support at 1-866-208-3676 (email at [email protected]),
or the Public Reference Room at (202) 502-8371, TTY (202) 502-8659
(email at [email protected]).
VII. Effective Date and Congressional Notification
13. The provisions of 5 U.S.C. 801 regarding Congressional review
of Final Rules do not apply to this Final Rule because the rule
concerns agency procedure and practice and will not substantially
affect the rights of non-agency parties.
14. These regulations are effective on July 25, 2012. The
Commission finds that notice and public comments are unnecessary
because this rule concerns only agency procedure or practice. Therefore
the Commission finds good cause to waive the notice period otherwise
required before the effective date of a Final Rule.
List of Subjects in 18 CFR Part 376
Civil defense, Organization and functions (Government agencies)
By the Commission.
Kimberly D. Bose,
Secretary.
In consideration of the foregoing, the Commission amends part 376,
Chapter I, Title 18, Code of Federal Regulations, to read as follows:
[[Page 43490]]
PART 376--ORGANIZATION, MISSION, AND FUNCTIONS; COMMISSION
OPERATION DURING EMERGENCY CONDITIONS
0
1. The authority citation for part 376 continues to read as follows:
Authority: 5 U.S.C. 553; 42 U.S.C. 7101-7352; E.O. 12009, 3 CFR
1978 Comp., p. 142.
0
2. Section 376.209 is revised to read as follows:
Sec. 376.209 Continuity of Operations Plan and suspension of
Commission operations.
(a)(1)(i) Activation of COOP and suspension of Commission
operations. The Commission's Continuity of Operations Plan may be
activated by the Chairman (or the Chairman's delegate pursuant to Sec.
376.205, as appropriate). In circumstances in which the Commission's
Continuity of Operations Plan is activated, Commission headquarters
operations may be temporarily disrupted in whole or in part or
communications with Commission headquarters may be temporarily
unavailable, either of which may prevent the public or the Commission
from meeting regulatory or statutory requirements. After the
Commission's Continuity of Operations Plan is activated, Commission
operations other than emergency functions may be suspended in whole or
in part by the Chairman (or the Chairman's delegate, as appropriate).
The provisions of this section are effective upon activation of the
Continuity of Operations Plan and the subsequent suspension of
Commission operations, in whole or in part, and shall remain in effect
up to 30 days, or such shorter time than 30 days as the Chairman (or
the Chairman's delegate, as appropriate) determines to be appropriate,
or such longer time than 30 days as the Commission (or the Commission's
delegate pursuant to section 376.204 of this Part, as appropriate)
determines to be appropriate. Resumption of Commission operations
following activation of the Continuity of Operations Plan and any
subsequent suspension of Commission operations, in whole or in part,
may occur either simultaneously for all activities, or over time for
just some activities, and in such manner and at such time, as the
Chairman (or the Chairman's delegate, as appropriate) or the Commission
(or the Commission's delegate, as appropriate) determines to be
appropriate.
(ii) Notification of COOP activation and, following such
activation, notification of suspension of Commission operations. During
periods when the Commission's Continuity of Operations Plan is
activated and, following such activation, when Commission operations
are subsequently suspended in whole or in part, the Chairman (or the
Chairman's delegate pursuant to Sec. 376.205, as appropriate) will
notify the public that the Continuity of Operations Plan has been
activated and that Commission operations have been suspended in whole
or in part by sending a press release announcing that fact to major
wire services, industry press, and appropriate metropolitan area radio
stations The Commission's Web site (http://www.ferc.gov) or the
Commission's alternative Web site (http://www.fercalt.gov), as
appropriate, will be activated and a notice that the Continuity of
Operations Plan has been activated and that Commission operations have
been suspended in whole or in part will be prominently displayed
thereon. The Web site or alternative Web site, as appropriate, will act
as a resource for the press, industry, and general public. An
additional press release will be sent to appropriate media outlets and
a notice will be prominently displayed on the Commission's Web site or
alternative Web site, as appropriate, when the Continuity of Operations
Plan is deactivated and the Commission's headquarters are reopened or
reconstituted and Commission operations resume.
(2) Activities continued during COOP. Notwithstanding other
provisions of this section, during periods when the Commission's
Continuity of Operations Plan is activated and, following such
activation, when Commission operations are subsequently suspended in
whole or in part, the Commission will continue to conduct emergency
functions. As part of its emergency functions, the Commission will act
on requests to ensure continued construction of essential natural gas
facilities with sensitive construction timelines, on Commencement of
Service requests, and on completion of dam safety work, in a manner
consistent with the maintenance of environmental protections. Also as
part of its emergency functions, the Commission will ensure that its
personnel are available to respond to plant accidents or reportable
incidents at LNG facilities, and to address dam safety, public safety,
and security incidents at jurisdictional hydropower projects and to
address other matters involving the safety of human life or protection
of property. Alternate channels of communication will include measures
to ensure that these activities can go forward unhindered.
(b) Standards of conduct for transmission service providers. During
periods when the Commission's Continuity of Operations Plan is
activated and, following such activation, when Commission operations
are suspended in whole or in relevant part, a Transmission Provider
affected by the same emergency affecting the Commission may, for up to
30 days, or such other time as the Chairman (or the Chairman's delegate
pursuant to Sec. 376.205, as appropriate) may direct, delay compliance
with the requirement to report to the Commission each emergency that
resulted in any deviation from the standards of conduct within 24 hours
of such deviation. If the emergency prevents such Transmission Provider
from posting information on its OASIS or Internet Web site, the
Transmission Provider may, for up to 30 days, or such shorter time as
the Chairman (or the Chairman's delegate, as appropriate) may direct or
such longer time as the Commission (or the Commission's delegate
pursuant to Sec. 376.204, as appropriate) may direct, also delay
compliance with the requirements of Sec. 358.4(a)(2) of this chapter
to post this information on its OASIS or Internet Web site, as
applicable.
(c) Tolling of time periods for Commission action. Unless otherwise
directed, for those pending matters where the date that the Commission
must act falls during the period when the Continuity of Operations Plan
is activated and, following such activation, when Commission operations
are suspended in whole or in relevant part and also during the 14 days
thereafter, the Commission tolls, for purposes of further
consideration, the time period in which the Commission must act. Such
matters include:
(1) 60-day period to act on requests for Exempt Wholesale Generator
or Foreign Utility Company status;
(2) 90-day period for acting on requests for certification of
qualifying facility status;
(3) 60-day period for acting on interlocking directorate
applications;
(4) 60-day period for acting on Public Utility Holding Company Act
exemptions and waivers;
(5) 180-period for acting on applications under section 203 of the
Federal Power Act;
(6) 150-day period for acting on intrastate pipeline applications
for approval of proposed rates;
(7) Period ending 60 days prior to the Electric Reliability
Organization's (ERO) fiscal year for acting on the ERO's budget;
[[Page 43491]]
(8) 60-day period for acting on notifications that a Reliability
Standard may conflict with a function, rule, order, tariff, rate
schedule or agreement;
(9) 60-day period for acting on applications for review of a
penalty imposed by the ERO for violation of a Reliability Standard;
(10) 45-day protest period for protesting Prior Notice Filings, and
the 30-day period for resolving and filing to withdraw such Protests;
(11) 30-day period for acting on requests for rehearing;
(12) Time periods for action by a presiding officer or the Motions
Commissioner, as well as by the Commission, on motions to permit
interlocutory appeals, interlocutory appeals and certified questions;
and
(13) 90-day period for acting on applications requesting relief
from, or reinstatement of, an electric utility's mandatory purchase
obligation pursuant to section 210(m) of the Public Utility Regulatory
Policies Act of 1978.
(d) Suspension of certain requirements. Unless otherwise directed,
during periods when the Commission's Continuity of Operations Plan is
activated and, following such activation, when Commission operations
are suspended in whole or in relevant part, the requirements to file by
a certain date are suspended when communications with Commission
headquarters are unavailable such that filings, submissions, and
notifications cannot be received by the Commission. Unless otherwise
directed by the Chairman (or the Chairman's delegate pursuant to Sec.
376.205, as appropriate), those filings, submissions, and
notifications, the filing of which was suspended, will be due the first
day that communications with Commission headquarters are available such
that filings, submissions, and notifications can be received by the
Commission. Such filings, submissions, and notifications include:
(1) Filings to comply with orders or notices, including orders or
notices issued by the Commission, a presiding officer, and a Commission
decisional employee (including the directors of the Commission's
various offices and their delegates);
(2) Filings required to be made by a date certain either under the
Commission's regulations, or under orders and notices issued by the
Commission, a presiding officer, and a Commission decisional employee
(including the directors of the Commission's various offices and their
delegates); such filings include, e.g., briefs, motions, and answers to
motions;
(3) Motions to intervene and notices of intervention, or protests;
(4) Comments responding to notices of inquiry, proposed rulemakings
or technical conferences;
(5) Responses to data requests and deficiency letters issued either
by the Commission or by a decisional employee pursuant to delegated
authority;
(6) Self-reports of violations;
(7) Responses to staff audit reports;
(8) Contacts with the Commission's Enforcement Hotline;
(9) Accounting filings required by the Commission's Uniform Systems
of Accounts;
(10) Forms required to be filed by a date certain;
(11) Notices of intent to file new applications and applications
for new licenses pursuant to section 15 of the Federal Power Act;
(12) Requests for rehearing of orders and letter orders issued
either by the Commission or by a decisional employee pursuant to
delegated authority; and
(13) The Electric Reliability Organization's advising the
Commission of the Electric Reliability Organization's intent to issue
Level 1 Advisories, Level 2 Recommendations, and Level 3 Essential
Actions, and the Electric Reliability Organization's reporting to the
Commission on actions taken in response to Level 2 Recommendations and
Level 3 Essential Actions.
(e) Acceptance and suspension of rate and other filings. Unless
otherwise directed, if the date by which the Commission is required to
act on rate and other filings made pursuant to section 4 of the Natural
Gas Act, section 205 of the Federal Power Act, and section 6(3) of the
Interstate Commerce Act falls during a period when the Continuity of
Operations Plan is activated and, following such activation, when
Commission operations are suspended in whole or in relevant part and
also during the 14 days thereafter, such filings shall be deemed to be
accepted for filing and suspended and made effective on the requested
effective date, subject to refund and further order of the Commission.
The acceptance for filing and suspension of these filings is without
prejudice to any further action the Commission may take with respect to
these filings.
(f) Electric Reliability Organization penalties. Unless otherwise
directed, if the date a penalty imposed by the Electric Reliability
Organization under section 215 of the Federal Power Act would take
effect falls during a period when the Continuity of Operations Plan is
activated and, following such activation, when Commission operations
are suspended in whole or in relevant part and also during the 14 days
thereafter, review of such penalty by the Commission shall be deemed to
be initiated and the penalty shall be stayed pending further action of
the Commission.
(g) Consistency of State action with Reliability Standard. Unless
otherwise directed, if the date by which a Commission determination
under section 215 of the Federal Power Act as to whether a State action
is inconsistent with a Reliability Standard is required to be made
falls during a period when the Continuity of Operations Plan is
activated and, following such activation, when Commission operations
are suspended in whole or in relevant part and also during the 14 days
thereafter, the effectiveness of the State action will be deemed to be
stayed pending further action by the Commission.
(h) Suspension of evidentiary hearings and related conferences and
meetings. During periods when the Continuity of Operations Plan is
activated and, following such activation, when Commission operations
are suspended in whole or in relevant part, all evidentiary hearings,
prehearing conferences, settlement conferences, and other meetings
before presiding officers are suspended, and any requirement that a
presiding officer act on motions (including motions to permit
interlocutory appeals and to certify questions) is also suspended.
Service of data requests and other discovery, and responses thereto, by
and to the Commission's Trial Staff is similarly suspended. Upon
resumption of Commission operations in whole or in relevant part, such
hearings, conferences and other meetings will be rescheduled, action on
motions also will be rescheduled, and service of data requests and
other discovery, and responses thereto, by and to the Commission's
Trial Staff, will similarly be rescheduled, by the presiding officer or
the Commission, as appropriate.
(i) Enforcement Actions under the Public Utility Regulatory
Policies Act of 1978. Unless otherwise directed, if the date by which
the Commission is required to act on a petition for enforcement action
under section 210(h)(2) of the Public Utility Regulatory Policies Act
of 1978 falls during a period when the Continuity of Operations Plan is
activated and, following such activation, when Commission operations
are suspended in whole or in relevant part, and also during the 14 days
thereafter, the Commission will not initiate such an enforcement action
under section
[[Page 43492]]
210(h)(2) of the Public Utility Regulatory Policies Act of 1978 and the
petitioner may itself bring its own enforcement action in the
appropriate court.
(j) Chairman's and Commission's authority to modify deadlines and
timeframes. During periods when the Continuity of Operations Plan is
activated and, following such activation, when Commission operations
are suspended in whole or in part and also during the 14 days
thereafter, the Chairman (or the Chairman's delegate pursuant to Sec.
376.205, as appropriate), may shorten, and the Commission (or the
Commission's delegate pursuant to Sec. 376.204, as appropriate) may
extend, with respect to the matters addressed in this section, as
appropriate:
(1) The time periods and dates for filings with the Commission, a
decisional employee, or a presiding officer;
(2) The time periods and dates for reports, submissions and
notifications to the Commission, a decisional employee, or a presiding
officer; and
(3) The time periods and dates for actions by the Commission, a
decisional employee, or a presiding officer.
[FR Doc. 2012-18157 Filed 7-24-12; 8:45 am]
BILLING CODE 6717-01-P