[Federal Register Volume 77, Number 143 (Wednesday, July 25, 2012)]
[Rules and Regulations]
[Pages 43488-43492]
From the Federal Register Online via the Government Printing 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 FERCOnlineSupport@ferc.gov), 
or the Public Reference Room at (202) 502-8371, TTY (202) 502-8659 
(email at public.referenceroom@ferc.gov).

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