[Federal Register: April 6, 2009 (Volume 74, Number 64)]
[Rules and Regulations]
[Page 15374-15376]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06ap09-6]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Part 38
Docket No. RM05-5-000; OA08-50-002]
Standards for Business Practices and Communication Protocols for
Public Utilities; Duke Energy Carolinas, LLC
Issued March 30, 2009.
AGENCY: Federal Energy Regulatory Commission.
ACTION: Order on Requests for Waiver.
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SUMMARY: The Federal Energy Regulatory Commission grants in part, and
denies in part, requests for waiver of certain North American Electric
Standards Board (NAESB) business practice standards incorporated into
Part 38 of the Commission's regulations.
DATES: Effective Date: This rule will become effective April 6, 2009.
FOR FURTHER INFORMATION CONTACT: W. Mason Emnett, Office of the General
Counsel--Energy Markets, Federal Energy Regulatory Commission, 888
First Street, NE., Washington, DC 20426, (202) 502-6540.
SUPPLEMENTARY INFORMATION:
Before Commissioners: Jon Wellinghoff, Chairman; Suedeen G. Kelly,
Marc Spitzer, and Philip D. Moeller.
1. On January 6, 2009, the Edison Electric Institute (EEI)
submitted in Docket No. RM05-5-000 a request on behalf of electric
transmission providers that the Commission issue a blanket waiver of
certain North American Electric Standards Board (NAESB) business
practice standards incorporated into the Commission's regulations. EEI
states that the NAESB business practices require the posting of
information that is inconsistent with the Commission's posting
requirements under Part 358 of its regulations, as amended in Order No.
717.\1\ The Commission grants in part, and denies in part, the
requested waiver, as discussed below.
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\1\ Standards of Conduct for Transmission Providers, Order No.
717, 73 FR 63796 (Oct. 27, 2008), FERC Stats. & Regs. ] 31, 280
(2008), reh'g pending.
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2. On January 16, 2009, Duke Energy Carolinas, LLC (Duke) renewed
EEI's request for waiver in Docket No. OA08-50-002 as part of a
compliance filing proposing to incorporate the latest version of
NAESB's business practice standards into Duke's Open Access
Transmission Tariff (OATT).\2\ Duke proposed incorporating a reference
to the pending request for waiver into certain provisions of its OATT.
The Commission directs Duke to submit a further compliance filing,
described below, to reflect the Commission's decision to grant in part,
and deny in part, the requested waiver.
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\2\ The Commission recently accepted Duke's compliance filing,
but deferred action on its request for waiver of NAESB's business
practice standards. See Duke Energy Carolinas, LLC, 126 FERC ] 61,
226 (2009).
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I. Background
3. NAESB is a non-profit standards development organization
established in January 2002 that serves as an industry forum for the
development of standards that promote a seamless marketplace for
wholesale and retail natural gas and electricity. In a series of
orders, the Commission has incorporated certain of
[[Page 15375]]
NAESB's standards into its regulations.\3\ The NAESB standards include
standards for business practices as well as standards and protocols for
electronic communication on the Open Access Same-time Information
System (OASIS).
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\3\ Standards for Business Practices and Communication Protocols
for Public Utilities, Order No. 676, 71 FR 26199 (May 4, 2006), FERC
Stats. & Regs. ] 31,216 (2006), reh'g denied, Order No. 676-A, 116
FERC ] 61,255 (2006), Order No. 676-B, 72 FR 21095 (Apr. 30, 2007),
FERC Stats. & Regs. ] 31,246 (2007), Order No. 676-C, 73FR 43848
(July 29, 2008, FERC Stats. & Regs. ] 31,274 (2008), Order No. 676-
D, 124 FERC ] 61,317 (2008); Standards for Business Practices for
Interstate Natural Gas Pipelines, Order No. 698, 72 FR 38757 (July
16, 2007), FERC Stats. & Regs. ] 31,251 (2007), order on
clarification and reh'g, Order No. 698-A, 121 FERC ] 61,264 (2007).
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4. Of particular relevance here, requirement WEQ-002-4.5.2 of
NAESB's Business Practices for OASIS Standards and Communications
Protocol (OASIS S&C Protocol), version 1.4, directs transmission
providers to establish a Standards of Conduct link on their OASIS home
pages that contains information that the Commission in Order No. 2004
required transmission providers to post on their OASIS sites.\4\
Requirement WEQ-001-1.6(g)(4) of the Business Practices for Open Access
Same-Time Information System (OASIS Business Practices), version 1.4,
provides for the posting of logs, also required in Order No. 2004,
detailing the circumstances and manner in which a transmission provider
exercises discretion under its OATT. Requirement WEQ-002-4.3.10.5 of
the OASIS S&C Protocol, version 1.4, establishes the template to be
used when posting such acts of discretion.
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\4\ Standards of Conduct for Transmission Providers, Order No.
2004, 68 FR 69134 (Nov. 25, 2003), FERC Stats. & Regs. ] 31,155
(2003), order on reh'g, Order No. 2004-A, 69 FR 23562 (Apr. 20,
2004), FERC Stats. & Regs. ] 31,161 (2004), order on reh'g, Order
No. 2004-B, 69 FR 48371 (Aug. 10, 2004), FERC Stats. & Regs. ]
31,166 (2004), order on reh'g, Order No. 2004-C, 70 FR 284 (Jan. 4,
2005), FERC Stats. & Regs. ] 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).
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5. In Order No. 676-C, the Commission incorporated by reference
into Part 38 of its regulations version 1.4 of the OASIS S&C Protocol,
including WEQ-002.4.5.2 and WEQ-002-4.3.10.5.\5\ However, the
Commission declined to incorporate into its regulations the entirety of
version 1.4 of the OASIS Business Practices.\6\ Among other things, the
Commission declined to incorporate WEQ-001-1.6, having explained in the
Notice of Proposed Rulemaking initiating the proceeding that this
business practice merely duplicates language already set forth in the
Commission's regulations and, therefore, is not appropriate for
incorporation.\7\
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\5\ Order No. 676-C, FERC Stats. & Regs. ] 31,274 at P 9; see 18
CFR 38.2 (2008).
\6\ Id. P 7, n.10; see 18 CFR38.2(a)(1).
\7\ Standards for Business Practices and Communication Protocols
for Public Utilities, Notice of Proposed Rulemaking, 70 FR 28222
(May 17, 2005), FERC Stats. & Regs. ] 32,582, at P 33-34 (2005).
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6. On September 2, 2008, NAESB reported to the Commission that its
Wholesale Electric Quadrant (WEQ) Executive Committee had approved new
versions of its standards, including the OASIS Business Practices and
the OASIS S&C Protocol. In the new versions of these standards, the
directive to establish a Standards of Conduct link on the OASIS is
moved from requirement WEQ-002-4.5.2 to requirement WEQ-001-1-13.1.2.
The language of the new requirement WEQ-001-1-13.1.2 is substantially
identical to the prior version of WEQ-002-4.5.2, which has been amended
to cross-reference the replacement language of WEQ-001-1-13.1.2. The
requirements of WEQ-001-1.6(g)(4) and WEQ-002-4.3.10.5 are unchanged.
The revised versions of the OASIS Business Practices and OASIS S&C
Protocol are the subject of a Notice of Proposed Rulemaking issued
recently in Docket No. RM05-5-013.\8\ Until such time as the Commission
acts in that proceeding, version 1.4 of those standards remains in
effect.
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\8\ Standards for Business Practices and Communications
Protocols for Public Utilities, Notice of Proposed Rulemaking, FERC
Stats. & Regs. ] 32,640 (2009).
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7. On October 16, 2008, the Commission issued Order No. 717,
reforming the Standards of Conduct applicable to transmission providers
and adopting corresponding revisions to Part 358 of the Commission's
regulations. Among other things, the Commission eliminated various
posting requirements previously imposed under Order No. 2004, including
the requirement to post certain information identified in version 1.4
of requirements WEQ-001-1.6(g)(4), WEQ-002.4.3.10.5, and WEQ-002-4.5.2.
II. Requests for Waiver
A. Docket No. RM05-5-000
8. On behalf of all electric transmission providers, EEI requests
in Docket No. RM05-5-000 that the Commission waive the requirements of
WEQ-001-1.6(g)(4), version 1.4, and WEQ-002-4.5.2 and WEQ-002.4.3.10.5,
version 1.4. EEI contends that these business practice standards are no
longer consistent with the posting requirements under the Standards of
Conduct as reformed in Order No. 717. Specifically, EEI states that
WEQ-002-4.5.2, version 1.4, provides that transmission providers should
post information on their OASIS sites regarding emergency circumstances
deviations, marketing and energy affiliates, shared facilities,
organizational charts and job descriptions, common employees, potential
merger partners, transfers, information disclosures, voluntary consent
to share non-affiliated customer information, discretionary actions
under the OATT, discounts, chief compliance officers, and written
implementation procedures. Although EEI acknowledges that the use of
``should'' in the business practice standard is arguably not mandatory,
EEI states that WEQ-001-1.6(g)(4), version 1.4, requires the posting of
discretionary actions under the OATT and that WEQ-002-4.3.10.5, version
1.4, dictates the exact template the transmission provider must use
when posting a log of acts of discretion.
9. EEI states that, in Order No. 717, the Commission made
significant changes to the Standards of Conduct. EEI notes that the
Commission, among other things, eliminated the requirement to post an
organizational chart, eliminated the requirement to post emergency
circumstances deviations, altered the requirement to post information
regarding affiliates, eliminated the requirement to post common
employees, and eliminated the discount posting requirement. As a
result, EEI states that the NAESB business practices standards impose
or suggest requirements that are no longer reflected in the
Commission's Standards of Conduct. EEI states that one or more of its
members will be seeking to change the relevant NAESB standards to
reflect Order No. 717, but in the interim EEI requests that the
Commission issue a blanket waiver to confirm that transmission
providers are not obligated to abide by NAESB standards that impose or
suggest posting requirements under the Standards of Conduct that have
been eliminated by Order No. 717.
B. OA08-50-002
10. Duke renews EEI's request for waiver as part of a compliance
filing in Docket No. OA08-50-002 proposing to incorporate the latest
version of NAESB's business practice standards. Duke states that it
supports EEI's request for waiver and, to that end, Duke proposes to
exclude WEQ 001-1.6(g)(4), WEQ-002-4.5.2, and WEQ-002-4.3.10.5 from the
incorporation of the NAESB OASIS Business Practices and OASIS S&C
Protocol into its OATT. The
[[Page 15376]]
Commission recently accepted Duke's filing as it related to other
compliance obligations, but deferred action on the request for waiver
of the NAESB business practice standards.
III. Commission Determination
11. The Commission grants in part, and denies in part, the
requested waiver. EEI and Duke request waiver of three NAESB business
practice standards: WEQ-001-1.6(g)(4) of the OASIS Business Practices,
version 1.4; and, WEQ-002-4.5.2 and WEQ-002.4.3.10.5 of the OASIS S&C
Protocol, version 1.4. The Commission grants waiver of the posting
requirements of WEQ-002-4.5.2, version 1.4, to the extent they extend
beyond the requirements of Part 358 of the Commission's regulations, as
amended by Order No. 717. The Commission denies as unnecessary the
request for waiver of WEQ-001-1.6(g)(4) and WEQ-002.4.3.10.5, version
1.4.
12. As noted by EEI, certain of the posting requirements of WEQ-
002-4.5.2 are no longer consistent with the posting requirements of
part 358 of the Commission's regulations, as amended by Order No. 717.
For example, WEQ-002-4.5.2 requires transmission providers to post
information regarding emergencies that result in a deviation from the
Standards of Conduct, referring to corresponding requirements in the
Commission's regulations adopted in Order No. 2004. In Order No. 717,
the Commission eliminated the requirement to post information regarding
emergency deviations, revising its regulations accordingly.\9\ The
version of WEQ-002-4.5.2 currently incorporated into Part 38 of the
Commission's regulations therefore does not reflect changes adopted in
Part 358 of the Commission's regulations. To conform the requirements
incorporated into Part 38 with the requirements of Part 358, the
Commission grants waiver for all electric transmission providers of
those requirements of section 38.2(b)(2) of the Commission's
regulations relating to the posting of information under WEQ-002-4.5.2,
version 1.4, that extend beyond the posting requirements of Part 358 of
the Commission's regulations, as amended by Order No. 717.\10\
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\9\ See 18 CFR 358.7(h) (as revised by Order No. 717 at P 214).
\10\ The Commission's determination here is consistent with its
proposal in the Notice of Proposed Rulemaking addressing recent
revisions to the NAESB business practice standards to not require
public utilities to comply with the requirements of WEQ-001-13.1.2,
version 1.5, that are inconsistent with Order No. 717. See Standards
for Business Practices and Communications Protocols for Public
Utilities, FERC Stats. & Regs. ] 32,640, at P 16 (2009).
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13. EEI and Duke also seek waiver of versions 1.4 of WEQ-001-
1.6(g)(4) and WEQ-002.4.3.10.5. As noted above, the Commission has not
incorporated WEQ-001-1.6 into Part 38 of its regulations and,
therefore, there is no conflict in the Commission's regulations with
respect to that posting requirement.\11\ With regard to WEQ-002-
4.3.10.5, although that standard has been incorporated into the
Commission's regulations,\12\ it merely establishes the template to be
used when posting information under WEQ-001-1.6(g)(4). That template
can continue to be used by transmission providers wishing to make such
postings, even if not otherwise required under the Commission's
regulations. Waiver of WEQ-001-1.6(g)(4) and WEQ-002.4.3.10.5 is
unnecessary and, accordingly, the Commission denies the requests for
waiver of those business practice standards.
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\11\ See 18 CFR 38.2(b)(1). As noted above, the Commission
declined to incorporate into its regulations the requirements of
WEQ-001-1.6, version 1.4, because those requirements merely
duplicate language already set forth in the Commission's
regulations.
\12\ See 18 CFR 38.2(b)(2).
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14. Consistent with the Commission's determination on the requests
for waiver, the Commission directs Duke to submit within 30 days a
further compliance filing in Docket No. OA08-50-002 to eliminate from
its OATT language stating that waiver of the requirements of WEQ-001-
1.6(g)(4) and WEQ-002-4.3.10.5 has been requested.
The Commission orders:
(A) The Commission hereby waives for all electric transmission
providers those requirements of 18 CFR 38.2(b)(2) relating to the
posting of information under WEQ-002-4.5.2, version 1.4, that extend
beyond the posting requirements of Part 358 of the Commission's
regulations, as amended by Order No. 717.
(B) The Commission directs Duke to submit within 30 days a further
compliance filing in Docket No. OA08-50-002 to eliminate from its OATT
language stating that a waiver of the requirements of WEQ-001-1.6(g)(4)
and WEQ-002-4.3.10.5 has been requested.
By the Commission.
Kimberly D. Bose,
Secretary.
[FR Doc. E9-7577 Filed 4-3-09; 8:45 am]
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