[Federal Register Volume 64, Number 143 (Tuesday, July 27, 1999)]
[Notices]
[Pages 40586-40590]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-19168]


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DEPARTMENT OF ENERGY

[FE Docket No. 99-1]


Proposed Open Access Requirement for International Electric 
Transmission Facilities and Delegation to the Federal Energy Regulatory 
Commission

AGENCY: Department of Energy.

ACTION: Notice of Proposed Amendment to Presidential Permits and Export 
Authorizations and Delegation and Assignment to the Federal Energy 
Regulatory Commission.

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SUMMARY: Notice is given of the Department of Energy's (DOE or 
Department) intention to amend existing Presidential permits issued for 
the construction, operation, maintenance, or connection of facilities 
at the international border for the transmission of electric energy 
between the United States and foreign countries to require permit 
holders to provide non-discriminatory open access transmission 
services. The open access requirement would also be attached to the 
permit holder's authorization(s) to export electricity. Notice is also 
given of the delegation and assignment by the Secretary of Energy 
(Secretary) to the Federal Energy Regulatory Commission (Commission) of 
the authority to carry out functions of the Secretary related to the 
implementation and enforcement of this open access requirement. This 
delegation and assignment rescinds and supersedes a prior delegation of 
the Secretary to the Commission, which transferred the authority to 
effectuate open access over the United States portion of the 
international transmission lines of the El Paso Electric Company.

DATES: Comments, protests, or requests to intervene must be submitted 
on or before September 27, 1999.

ADDRESSES: Comments, protests or requests to intervene should be 
addressed as follows: Office of Coal & Power Im/Ex (FE-27), Office of 
Fossil Energy, U.S. Department of Energy, 1000 Independence Avenue, SW, 
Washington, DC 20585-0350 (FAX 202-287-5736).

FOR FURTHER INFORMATION CONTACT: Ellen Russell (Program Office) 202-
586-9624 or Michael Skinker (Program Attorney) 202-586-6667.

SUPPLEMENTARY INFORMATION:

I. Background

    The Secretary has the authority under the Department of Energy 
Organization Act (DOE Act) (Pub. L. 95-91) to approve or disapprove 
applications to transmit electricity to a foreign country pursuant to 
section 202(e) of the Federal Power Act (FPA) (16 U.S.C. 824a(e)). 
Moreover, the Secretary has the authority to approve or disapprove 
applications to construct, operate, maintain, or connect electric 
transmission facilities at the border between the United States and a 
foreign country through the issuance of a Presidential permit pursuant 
to Executive Order (EO) 10485, dated September 3, 1953, as amended by 
EO 12038, dated February 3, 1978. Under section 202(e) of the FPA, the 
Secretary may issue necessary or appropriate supplemental orders to 
modify the terms or conditions of authorizations to export electricity. 
The export authorizations themselves allow for modification or 
termination. Under the authority of the EO, the Secretary may attach to 
the Presidential permit, and the rights granted thereunder, such 
conditions as the public interest may require.
    These functions were originally vested in the Federal Power 
Commission (FPC). Subsection 301(b) of the DOE Act transferred to, and 
vested in, the Secretary all the functions of the FPC not specifically 
vested by the DOE Act in the Commission. The FPC's functions with 
respect to transmission of electricity to a foreign country and 
electric transmission facilities at the border were not specifically 
vested in the Commission by the DOE Act. Furthermore, subsection 402(f) 
of the DOE Act provides that no function which regulates the export or 
import of electricity shall be within the jurisdiction of the 
Commission unless the Secretary assigns such a function to the 
Commission.
    In its Order No. 888 (Promoting Wholesale Competition Through Open 
Access Non-Discriminatory Transmission Services by Public Utilities, 
FERC Stats. & Regs. para.31,036 (1996)), the Commission required public 
utilities to provide comparable open access and non-discriminatory 
transmission service in interstate commerce in order to promote 
competition. In a later order in response to a request from Enron Power 
Marketing, Inc. (EPMI) for transmission access across the international 
transmission facilities of the El Paso Electric Company (EPE), the 
Commission expressed the opinion that cross-border electric trade ought 
to be subject to the same principles of comparable open access and non-
discrimination that apply to transmission in interstate commerce (See 
Enron Power Marketing, Inc., 77 FERC para.61,013 (1996)). However, the 
Commission determined that a gap existed in its authority to require 
open access from EPE's last substation within the United States up to 
the border. It further concluded that the Secretary, not the 
Commission, had the authority to regulate transmission access over the 
U.S. portion of international transmission lines under section 202(e) 
of the FPA and under the Executive

[[Page 40587]]

Orders authorizing issuance of Presidential permits.

II. Discussion

    The Department agrees with these conclusions. As a matter of 
policy, the Department strongly supports the emergence of a more 
competitive wholesale electricity market and considers comparable open 
access and non-discriminatory transmission service for both domestic 
and international transactions a critical factor in creating and 
sustaining a competitive market. Thus, the Department supports the 
application of the Commission's domestic open access policy to the U.S. 
international transmission facilities. Because the Commission regulates 
transmission access and the rates, terms, and conditions of 
transmission service for most of the transmission facilities owned by 
EPE, the Department concluded that the Commission was the appropriate 
agency to address the transmission access and related regulatory issues 
with respect to those cross-border transmission facilities. Therefore, 
on November 1, 1996, the Secretary delegated and assigned to the 
Commission the necessary authority to carry out the open access policy 
and, thus, authorized the Commission to take any further actions that 
might be necessary to effectuate open access over the United States 
portion of EPE's cross-border electric transmission lines. (Delegation 
Order No. 0204-163 (61 FR 56525, November 1, 1996)). In response to 
that delegation, the Commission ordered EPE to provide non-
discriminatory open access transmission services over its international 
facilities. Consequently, it amended EPE's export authorization (EA-48-
I) and EPE's Presidential permits for the lines connecting the Diablo 
and Ascarate substations in the United States with the Insurgentes and 
Riverena substations in Mexico (PP-48 and PP-92). (Enron Power 
Marketing, Inc., 83 FERC para.61,213 (1998)).
    Since the time of that delegation, DOE has consistently expressed 
its policy that cross-border trade in electric energy should be subject 
to the same principles of comparable open access and non-discrimination 
that apply to transmission in interstate commerce. DOE has stated this 
policy in export authorizations granted to entities requesting 
authority to export over international transmission facilities. In 
those authorizations, DOE indicated it expected transmitting utilities 
owning cross-border facilities constructed pursuant to Presidential 
permits to provide access across the border in accordance with the 
principles of comparable open access and non-discrimination contained 
in the FPA and articulated in Commission Order No. 888, as amended.

III. Proposed Amendment to Presidential Permits and Export 
Authorizations

    In furtherance of this policy, DOE now intends to condition 
existing and future Presidential permits issued for international 
electric transmission facilities appropriate for third party 
transmission on compliance with a requirement to provide non-
discriminatory open access transmission services. This open access 
requirement would also be attached to the permit holder's 
authorization(s) to export electricity.
    Notice is hereby being given that DOE proposes to amend the 
following Presidential permits (PP No.), and export authorizations (EA 
No.) to add the above open access requirement:

----------------------------------------------------------------------------------------------------------------
            Permittee                  PP No.\1\            Voltage             Location           EA No.\1\
----------------------------------------------------------------------------------------------------------------
CANADA:
    Avista Corporation (formerly  PP-86               230 kV.............  Northport, WA (not  EA-98
     Washington Water Power).                                               built).            EA-101
    Bangor Hydro-Electric         PP-89               345 kV.............  Baileyville, ME
     Company.                                                               (not built)
    Basin Electric Power          PP-64               230 kV.............  Tioga, ND.........  IE-78-5
     Cooperative.
    Boise Cascade Corporation...  PP-96               115 kV.............  International
                                                                            Falls, MN
    Bonneville Power              PP-10               2-500 kV...........  Blaine, WA
     Administration.              PP-36               230 kV.............  Nelway, BC........
                                  PP-46               230 kV.............  Nelway, BC........
    Bradfield Electric            PP-87               69 kV..............  South Fork Craig
     Corporation.                                                          River, AK.........
    Burke-Divide Electric         PP-177              12.47 kV...........  Burke County, ND..  EA-177
     Cooperative.
    Central Maine Power Company.  PP-62               120/240 V..........  Coburn Gore, ME
    Citizens Utilities Company..  PP-66               120 kV.............  Derby Line, VT....  EA-66
                                  PP-80               25 kV..............  Cannan, VT........  EA-80
                                                      25 kV..............  Norton, VT
    Detroit Edison Company......  PP-38               345 kV.............  St Clair, MI......  EA-58
                                  PP-21               230 kV.............  Marysville, MI
                                                      230 kV.............  Detroit, MI
                                  PP-58               345 kV.............  St. Clair, MI
    Eastern Maine Electric        PP-20               6.9 kV.............  Forest City, ME...  E-6853
     Cooperative.                 PP-32               69 kV..............  Calasis, ME
    Glacier Electric              PP-18               120/240 V..........  Carway, Alberta...  E-6446
     Cooperative, Inc.                                120/240 V..........  Del Bonita,
                                                                            Alberta.
    Hill County Electric          PP-118              69 kV..............  Wild Horse,         EA-118
     Cooperative.                                                           Alberta.
    Joint Owners of the Highgate  PP-82               120 kV (Built for    Franklin, VT......  EA-82
     Project.                                          345 kV).
    Long Sault Inc..............  PP-24               2-115 kV...........  Massena, NY.......  E-7022
    Maine Electric Power Company  PP-43               345 kV.............  Houlton, ME.......  E-7534
    Maine Public Service Company  PP-12               69 kV..............  Limestone, ME.....  E-6751
                                                      69 kV..............  Fort Fairfield, MI  IE-78-10
                                  PP-29               138 kV.............  Aroostock County,
                                                      2-69 kV............   ME
                                  PP-81               7.2 kV.............  Madawaska, ME
                                                                           River-de-Chute, ME
    Marias River Electric         PP-41               6.9 kV.............  Sweet Grass, MT...  IT-6097
     Cooperative.
    Minnesota Power, Inc........  PP-78               115 kV.............  International       EA-78
                                                                            Falls, MN.         EA-196
                                                                                               E-9534

[[Page 40588]]

 
    Minnkota Power Cooperative,   PP-61               230 kV.............  Roseau County, MN.  E-9535
     Inc.                         PP-70               12 kV..............  Lake of the Woods   E-7482
                                                                            County, MN.
    Netley Corporation..........  PP-23               4.8 kV.............  Grindstone Island,  E-6616
                                                                            NY.
    New York Power Authority....  PP-25               2-230 kV...........  Massena, NY.......
                                  PP-30               230 kV.............  Devil's Hole, NY..
                                  PP-56               765 kV.............  Fort Covington, NY
                                  PP-74               2-345 kV...........  Niagara Falls, NY.
    Niagara Mohawk Power          PP-13               4.8 kV.............  Hogansburg, NY....  E-6796
     Corporation.                 PP-190              230 kV.............  Devil's Hole, NY..  PP-24-B
                                                      115 kV.............  Buffalo, NY
                                                      115 kV.............  Lewiston, NY
                                                      69 kV (25 Hz)......  Devil's Hole, NY
                                                      69 kV (25 Hz)......  Lewiston, NY
                                                      38 kV (25 Hz)......  Buffalo, NY
                                                      13-12 kV (25 Hz)...  Rainbow Bridge, NY
    North Central Electric        PP-67               12.5 kV............  Dunseith, ND......
     Cooperative.
    Northern Electric             PP-28               3-7.2 kV...........  Valley County, MT.  E-6670
     Cooperative, Inc.            PP-44               12.4 kV............  St. Louis County,
                                  PP-60               2-14.4 kV..........   MN.
                                                                           St. Louis County,
                                                                            MN.
    Northern States Power         PP-45               230 kV.............  Red River, ND.....  E-7482
     Company.                     PP-63               500 kV.............  Roseau County, MN.  IE-78-6
    Public Utility District No.   PP-34               7.2 kV.............  Point Roberts, WA.
     1 of Pend Oreille County,
     WA.
    Puget Sound Energy..........  PP-6                25 kV..............  Point Roberts, WA.  EA-98
    Roseau Electric Cooperative,  PP-42               7.2 kV.............  Roseau County, MN.  E-8361
     Inc.                         PP-55               25 kV..............  Roseau County, MN.
    St. Clair Tunnel Company....  PP-99               4.8 kV.............  St Clair, MI......  EA-99
    Vermont Electric              PP-69               25 kV..............  Derby Line, VT      .................
     Cooperative, Inc.            ..................  2-14.4 kV
    Vermont Electric              PP-76               450 kV   Norton, VT........  EA-76
     Transmission Company, Inc.   ..................   DC.                 Millbury, MA
                                                      345 kV.............  West Medway, MA
                                                      345 kV.............
MEXICO:
    Arizona Public Service        PP-106              34.5 kV............  San Louis, AZ.....  EA-98
     Company.                     PP-107              34.5 kV............  Douglas, AZ.......  EA-104
                                  PP-108              34.5 kV............  San Louis, AZ.....  EA-106
                                                                                               EA-107
                                                                                               EA-108
                                                                                               EA-134
    Central Power & Light         PP-94               69 kV..............  Brownsville, TX...  EA-94 \2\
     Company.                                         138 kV
    Citizens Utilities Company..  PP-16               13 kV..............  Nogales, AZ.......  E-6431
                                  PP-40               2.3 kV               ..................  E-7370
                                                      13.8 kV............  Lochiel, AZ
    Comision Federal de           PP-03               12.5 kV............  Presidio, TX......
     Electricidad.\2\             PP-50               138 kV.............  Eagle Pass, TX
                                  PP-51               7.2 kV.............  Redford, TX
                                  PP-57               138 kV.............  Laredo, TX
                                  PP-59               12 kV..............  Del Rio, TX
                                  PP-75               7.2 kV.............  Comstock, TX
    El Paso Electric Company\3\.  PP-48               115 kV.............  El Paso, TX.......  EA-48
                                  PP-92               115 kV.............  Sunland Park, NM..  EA-98
    Imperial Irrigation           PP-90               34.5 kV............  Calexico, CA
     Districit.                   PP-174              2-34.5 kV..........  Calexico, CA
    NRG Energy, Inc.\4\.........  PP-192              500 kV.............  Calexico, CA
    Public Service Company of     PP-197              345 kV AC, or + 400  Nogales or Sasabe,  EA-98
     New Mexico.\4\                                    kV DC.               AZ.
    Rio Grande Electric           PP-33               14.4/24.9 kV.......  Health Crossing,    E-6868
     Cooperative, Inc.            PP-53               14.4 kV............   TX.                E-7688
                                                      14.4 kV............  Lajitas, TX.......
                                                      14.4 kV............  Castolon, TX......
                                                                           Candelaria, TX....
    San Diego Gas & Electric Co.  PP-49               12 kV..............  Tijuana, MX.......  PP-49-A
                                  ..................  12 kV..............  Tecate, MX........  PP-68EA
                                  PP-68               230 kV.............  Tijuana, MX.......  PP-79EA
                                  PP-79               230 kV (twinned)...  La Rosita, MX.....  EA-100
    Trico Electric Coop., Inc...  PP-35               4.8 kV.............  Sasabe, AZ........  E-7073
----------------------------------------------------------------------------------------------------------------
\1\ These Presidential permit and export authorization numbers refer to the generic DOE number and are intended
  to include any subsequent amendments.
\2\ CFE has a 138 kV line at Falcon Dam, Texas, that was authorized by a treaty. EA-94 authorized Central Power
  & Light to export over this line.
\3\ As discussed herein, El Paso's Presidential permits and its export authorization have already been amended
  by the FERC to include an open access requirement.

[[Page 40589]]

 
\4\ These Presidential permits have not been issued yet. Notices of the applications requesting the permits have
  appeared in the Federal Register. (PP-192--63 FR 46426, 9/1/98; PP-197--64 FR 2476, 1/14/99)

    DOE has determined that the open access requirement will not be 
added to the following Presidential permits, because the lines 
authorized by those permits are not currently connected to the U.S. 
domestic electric power system and, thus, are not appropriate for third 
party transmission.

----------------------------------------------------------------------------------------------------------------
            Permittee                   PP No.\1\            Voltage                      Location
----------------------------------------------------------------------------------------------------------------
Boise Cascade Corp...............  PP-39               6.6 kV              International Falls, MN
British Columbia Hydro & Power     PP-22               2-132 kV            Galiano Island, BC
 Authority.                                            1-260 kV
Dynegy Power Corporation \2\.....  PP-188              230 kV              Santa Teresa, NM
Fraser Paper Limited.............  PP-11               6.6 kV              Madawaska, ME
                                                       69 kV
Presley, E.T.....................  PP-54               4.8 kV              Wellesley Island, NY
Sumas Energy 2, Inc.\2\..........  PP-204              2-230 kV            Sumas, WA
Westmin Mines, Inc...............  PP-85               35 kV               Hyder, AK
Frontera Generation LP...........  PP-206              2-230 kV            Hidalgo County, TX
Wilson-7 Energy Systems \2\......  PP-195              600 kV  Fort Hancock, TX
                                                        DC
----------------------------------------------------------------------------------------------------------------
\1\ These Presidential permit numbers refer to the generic DOE number and are intended to include any subsequent
  amendments.
\2\ These Presidential permits have not been issued yet. Notices of the applications requesting the permits have
  appeared in the Federal Register. (PP-188--63 FR 37097, 7/9/98; PP-195--63 FR 68260, 12/10/98; PP-204--64 FR
  9324, 2/25/99)

    DOE is interested in public comments on the proposed action. Any 
permit holder that believes the open access requirement should not be 
applied to its facilities should specify in its comments why 
application of the requirement would not be appropriate or in the 
public interest. Any holders of Presidential permits that disagree with 
any of the above information regarding their permits, export 
authorizations, or international facilities should specify those areas 
of disagreement and provide any necessary documentation.

IV. Delegation Order

    Section 642 of the DOE Act permits the Secretary to delegate any of 
the Secretary's functions to any officer or employee of the Department 
the Secretary may designate, including the Commission. Also, the 
Secretary's authority to regulate exports of electricity may be 
assigned in whole or in part to the Commission under subsections 402(e) 
and (f) of the DOE Act, after public notice of the assignment.
    Pursuant to these provisions of the DOE Act, public notice is given 
that the Secretary delegates and assigns to the Commission the 
authority to carry out certain functions vested in the Secretary. The 
assignment is in the form of a delegation, which is effective upon 
publication of this notice. (see Attachment)
    In order to permit uniform implementation and enforcement of the 
domestic and international open access policy, the Department believes 
the Commission is the appropriate agency to address the transmission 
access and related regulatory issues with respect to international 
transmission of electricity over cross-border facilities. Accordingly, 
the Secretary is delegating to the Commission the authority under the 
FPA and EO 10485, as amended by EO 12038, to implement and enforce the 
requirement imposed by the Department on those international electric 
transmission lines appropriate for third party transmission to provide 
non-discriminatory open access transmission services. Specifically, 
this delegation gives the Commission the authority to regulate access 
to, and the rates, terms, and conditions for, transmission services 
over those permitted international electric transmission facilities 
subject to that requirement to the extent the Commission finds it 
necessary and appropriate to the public interest. The delegation does 
not give the Commission authority to revoke, amend, or otherwise modify 
Presidential permits or electricity export authorizations issued by the 
Secretary. It also does not give the Commission authority to order 
expansion of international electric transmission facilities. However, 
DOE expects the Commission to advise DOE if it concludes that further 
action by DOE in a particular case is necessary.
    This delegation rescinds and supersedes the Secretary's specific 
delegation to the Commission (Delegation Order No. 0204-163 mentioned 
above), which was limited to authority over the international 
transmission lines of EPE; however, it does not rescind, amend or 
supersede any orders issued by the Commission under that earlier 
delegation. This delegation amends to the limited extent, but does not 
otherwise rescind or supersede, the Secretary's prior delegation of 
authority to regulate exports of electricity to the Assistant Secretary 
for Fossil Energy (Delegation Order No. 0204-127, February 7, 1989), 
subdelegated to the Manager, Electric Power Regulation (Delegation 
Order dated February 7, 1997).

Procedural Matters

    Any person desiring to become a party to this proceeding should 
file a petition to intervene at the address provided above in 
accordance with section 385.214 of the Commission's Rules of Practice 
and Procedure (18 CFR 385.214). Any person desiring to be heard 
regarding this proposed action to amend the Presidential permits or 
export authorizations may file written comments or protests at the 
address provided above in accordance with section 385.211 of the 
Commission's Rules of Practice and Procedure (18 CFR 385.211). Fifteen 
copies of such petitions and comments or protests should be filed with 
the DOE on or before the date listed above. Filings should be clearly 
marked with this docket number and reference the specific Presidential 
permit or export authorization to which the intervention, comment, or 
protest should be applied.
    DOE has determined the proposed action is in the public interest 
and will not adversely impact on the reliability of the U.S. electric 
power supply system. However, a final decision on the proposed action 
will not be made until

[[Page 40590]]

the environmental impacts have been evaluated pursuant to the National 
Environmental Policy Act of 1969. DOE also must obtain the concurrence 
of the Secretary of State and the Secretary of Defense before taking 
final action on amending the Presidential permits.

    Issued in Washington, D.C., on July 21, 1999.
Anthony J. Como,
Deputy Director, Electric Power Regulation, Office of Coal & Power Im/
Ex, Office of Coal & Power Systems, Office of Fossil Energy.

Attachment--Department of Energy Delegation Order No. 0204-170 to the 
Federal Energy Regulatory Commission

    Pursuant to the authority vested in me as the Secretary of 
Energy (Secretary) by sections 642 and 402(e) of the Department of 
Energy Organization Act (DOE Act) (42 U.S.C. 7252, 7172(e)), there 
is hereby delegated and assigned to the Federal Energy Regulatory 
Commission (Commission) the authority to carry out such functions as 
are necessary to implement and enforce the Secretary's policy 
requiring holders of Presidential permits authorizing the 
construction, operation, maintenance, or connection of facilities 
for the transmission of electric energy between the United States 
and foreign countries to provide non-discriminatory open access 
transmission services.
    In exercising the authority delegated by this Order the 
Commission is specifically authorized to utilize the authority of 
the Secretary under Executive Order (EO) 10485, dated September 3, 
1953, as amended by EO 12038, dated February 3, 1978, and section 
202(e) of the Federal Power Act (FPA) (16 U.S.C. 824a(e)) and such 
other sections of the FPA vested in the Secretary as may be 
relevant, to regulate access to, and the rates, terms, and 
conditions for, transmission services over permitted international 
electric transmission facilities to the extent the Commission finds 
it necessary and appropriate to the public interest. This authority 
is delegated to the Commission for the sole purpose of authorizing 
the Commission to take actions necessary to implement and enforce 
non-discriminatory open access transmission service over the United 
States portion of those international electric transmission lines 
required by the Secretary to provide such service. Nothing in this 
delegation shall allow the Commission to revoke, amend, or otherwise 
modify Presidential permits or electricity export authorizations 
issued by the Secretary. The authority delegated to the Commission 
may be further delegated within the Commission, in whole or in part, 
as may be appropriate.
    All actions taken pursuant to authority delegated prior to this 
Order or pursuant to any authority delegated by this Order taken prior 
to and in effect on the date of this Order are hereby confirmed and 
ratified, and shall remain in full force and effect as if taken under 
this Order, unless and until rescinded, amended, or superseded.
    Nothing in this Order shall preclude the Secretary from exercising 
or further delegating any of the authority hereby delegated, whenever, 
in the Secretary's judgment, the exercise or further delegation of such 
authority is necessary or appropriate to administer the functions 
vested in the Secretary.
    This Order hereby rescinds and supersedes the previous Secretarial 
delegation and assignment to the Commission in Delegation Order No. 
0204-163, dated November 1, 1996.
    This Order is effective on July 27, 1999.
Bill Richardson,
Secretary of Energy.
[FR Doc. 99-19168 Filed 7-26-99; 8:45 am]
BILLING CODE 6450-01-P