[Federal Register Volume 71, Number 144 (Thursday, July 27, 2006)]
[Rules and Regulations]
[Pages 42593-42596]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-11990]



[[Page 42593]]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 376

[Docket No. RM06-19-000, Order No. 680]


Commission Procedures During Periods of Emergency Requiring 
Activation of Continuity of Operations Plan

Issued July 20, 2006.
AGENCY: Federal Energy Regulatory Commission, DOE.

ACTION: Final rule.

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SUMMARY: In this rule the Commission establishes procedures with regard 
to filing and other requirements if the Commission is required to 
implement its Continuity of Operations Plan in response to an emergency 
situation that disrupts communications to or from the Commission's 
headquarters or which otherwise impairs headquarters operations. The 
rule temporarily suspends filing requirements and ensures that 
deadlines for Commission actions that fall during the period the plan 
is in operation are met, thereby providing continuity in the conduct of 
the Commission's business and certainty to parties with business before 
the Commission.

EFFECTIVE DATE: The rule will become effective July 20, 2006.

FOR FURTHER INFORMATION CONTACT: John Clements, Office of the General 
Counsel, Federal Energy Regulatory Commission, Room 101-57, 888 First 
St., NE., Washington, DC 20426, 202-502-8070.

SUPPLEMENTARY INFORMATION: Before Commissioners: Joseph T. Kelliher, 
Chairman; Nora Mead Brownell, and Suedeen G. Kelly.

I. Introduction

    1. The Federal Energy Regulatory Commission (Commission) is 
amending its regulations to modify certain filing requirements and 
establish procedures to be effective during emergencies affecting the 
Commission that require it to implement its Continuity of Operations 
Plan (COOP Plan). The COOP Plan was developed to address emergency 
conditions lasting up to 30 days during which Commission headquarters 
operations may be temporarily disrupted or communications may be 
temporarily unavailable, either of which may prevent the public or the 
Commission from meeting regulatory or statutory requirements.\1\ The 
COOP Plan is designed to ensure that the Commission is able to quickly 
restore its ability to perform essential functions should such 
conditions occur.\2\ The rule temporarily suspends filing requirements 
and ensures that deadlines for Commission actions that fall during the 
period the plan is in operation are met, thereby providing continuity 
in the conduct of the Commission's business and certainty to parties 
with business before the Commission.\3\
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    \1\ The emergency conditions which might trigger activation of 
the COOP Plan are not identical to ``emergency conditions'' as 
heretofore defined in 18 CFR 376.201. One of the revisions discussed 
below modifies that section to cover the emergency conditions that 
would trigger activation of the COOP Plan.
    \2\ More information concerning the COOP Plan can be found on 
the Commission's Web site at www.ferc.gov/coop.asp.
    \3\ Activation of the COOP Plan affects communications with 
headquarters only, and does not affect communications required to be 
made directly to the Commission's Regional Offices.
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II. Discussion

A. Acceptance and Suspension of Pending Filings Requiring Commission 
Action by a Date Certain

    2. The rule provides for the acceptance and suspension, during 
emergencies that disrupt normal operations and communications and 
require activation of the COOP Plan,\4\ of pending filings upon which 
the Commission would be required to act by a date certain during the 
period of emergency. The effective date(s) of such filings shall be the 
date(s) requested, to be effective subject to refund and further order 
of the Commission. These include filings made pursuant to:
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    \4\ Not all disruptions of communications with the Commission's 
headquarters will require activation of the COOP Plan and the 
triggering of these regulations. For instance, a brief outage of 
eLibrary that prevents entities from making electronic filings would 
not trigger activation of the COOP Plan.
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     Section 4 of the Natural Gas Act;
     Section 205 of the Federal Power Act; and
     Section 6(3) of the Interstate Commerce Act.

B. Electric Reliability Organization Penalties

    3. If the date on which a penalty imposed by an Electric 
Reliability Organization pursuant to FPA Sec.  215 would take effect 
falls during a period when the COOP Plan is activated, review of such 
penalty by the Commission will be deemed to be initiated and the 
penalty shall be stayed pending further action by the Commission.

C. Consistency of State Action With Reliability Standard

    4. If the date by which a Commission determination under FPA Sec.  
215 as to whether a State action is inconsistent with a reliability 
standard is required to be made falls during a period when the COOP 
Plan is activated, the effectiveness of the State action will be deemed 
to be stayed pending further action by the Commission.

D. Tolling of Time Periods for Commission Action

    5. The rule also tolls for purposes of further consideration the 
time periods for certain Commission actions that will be required 
during the emergency. These include the:
     60-day period for acting on requests for Exempt Wholesale 
Generator or Foreign Utility Company status;
     60-day period for acting on interlocking directorate 
applications;
     90-day period for acting on requests for certification of 
qualifying facility status;
     60-day period for acting on holding company and 
transaction exemptions and waivers;
     180-day period for acting on public utility and holding 
company applications for dispositions, considerations, or acquisitions;
     150-day period for acting on intrastate pipeline 
applications for approval of proposed rates;
     Period ending 60 days prior to the Electric Reliability 
Organization's (ERO) fiscal year for acting on the ERO's budget;
     60-day period for acting on notifications that a 
Reliability Standard may conflict with a function, rule, order, tariff, 
rate schedule or agreement;
     60-day period for acting on applications for review of a 
penalty imposed by the ERO for violation of a reliability standard;
     45-day Protest period for protesting Prior Notice Filings, 
and the 30-day period for resolving and filing to withdraw such 
Protests; \5\
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    \5\ The result of these suspensions is that no facilities 
subject to the prior notice provisions of the Commission's blanket 
certificate regulations not finally authorized prior to the 
activation of the COOP Plan shall be constructed during its 
activation in the absence of specific authorization by the 
Commission.
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     30-day period for acting on requests for rehearing;
     Time periods prescribed in 18 CFR 385.714-715 for acting 
on interlocutory appeals and certified questions.

E. Suspension of Certain Requirements

    6. Disruptions to normal operations and communications during an

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emergency that require activation of the COOP Plan could make 
compliance with some Commission statutes, regulations, or orders 
difficult or impossible. This rule suspends those requirements during 
the emergency. The affected regulatory requirements include mandatory 
filings, submissions, and notifications, as well as voluntary notices, 
contacts, or reports to the Commission. They include:
     Filings to comply with Commission orders, including orders 
issued by administrative law judges;
     Filings required to be made by a date certain under the 
Commission's regulations or orders;
     Motions to intervene and protests, and notices of 
intervention;
     Comments responding to proposed rulemakings or technical 
conferences;
     Responses to data requests;
     Self-reports of violations;
     Responses to staff audit reports;
     Contacts with the Commission's Enforcement Hotline;
     Accounting filings required by the Commission's Uniform 
Systems of Accounts; and
     Forms, reports, and submissions required to be filed by a 
date certain.
    7. The rule also grants certain relief with respect to the 
Commission's Standards of Conduct for Transmission Providers that are 
also affected by the emergency affecting the Commission. Specifically, 
such Transmission Providers may, for 30 days, delay compliance with the 
requirement of Sec.  358.4(a)(2) of the regulations \6\ to report to 
the Commission each emergency that resulted in any deviation from the 
Standards of Conduct within 24 hours of such deviation. Unless the 
emergency prevents the Transmission Provider from posting information 
on the OASIS or Internet Web site, the Transmission Provider must 
comply with those posting requirements. The 30-day period may be 
extended as necessary.
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    \6\ 18 CFR 358.4(a)(2).
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F. Intention Not To Act

    8. The rule provides that, during the emergency conditions that 
require activation of the COOP Plan, the Commission will not initiate 
an enforcement action under Sec.  210(h)(2) of the Public Utility 
Regulatory Policies Act of 1978.\7\ Applicants may, as a consequence, 
bring their own enforcement actions in the appropriate courts.
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    \7\ 16 U.S.C. 824a-3(h)(2).
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G. Suspension of Proceedings Before Administrative Law Judges

    9. The rule also suspends all hearings, prehearing conferences, 
settlement conferences, and meetings before administrative law judges 
while the COOP Plan is activated.

H. Delegations of Authority

    10. This rulemaking also revises the Commission's rules regarding 
emergency operations to ensure that delegations of authority will 
remain effective in the event the COOP Plan is activated. The revisions 
clarify Sec.  376.206 of the Commission's regulations to specify with 
more particularity what persons will be authorized to exercise 
delegated authority in the event the officials to whom delegations are 
made under Part 375 are unavailable. Section 376.204(b)(2) also is 
being revised to update the list of officials designated to act on 
behalf of the Commission in the event of an emergency. Finally, the 
definition of ``emergency condition'' contained in Sec.  376.201 is 
being revised to include specifically any condition that necessitates 
activation of the COOP Plan.

I. Related Matters

    11. The COOP Plan includes procedures to inform the public when the 
COOP Plan is activated, when alternate channels of communication are 
established, when normal operations and communications are resumed, and 
the length of any grace period to comply with requirements that were 
suspended during the emergency. A press release will be sent to major 
wire services, industry press, and appropriate metropolitan area radio 
stations announcing that the Commission has activated the COOP Plan. 
The Commission's alternative Web site (http://www.fercalt.gov) will be 
activated and a notice that the COOP Plan has been activated will be 
prominently displayed thereon. The alternative Web site will act as a 
resource for the press, industry, and general public. An additional 
press release will be sent to appropriate media outlets when the COOP 
Plan is deactivated and the Commission's headquarters constituted, and 
appropriate modifications made to the alternative Web site.
    12. Finally, during periods when the COOP is activated, the 
Commission will continue to 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. The Commission will further 
ensure that its personnel are available to respond to and address: 
Plant accidents or reportable incidents at LNG facilities; dam safety, 
public safety, and security incidents at jurisdictional hydropower 
projects; and regional and interregional bulk power systems incidents 
and emergencies, including blackouts. Alternate channels of 
communication will include measures to ensure that these activities can 
go forward unhindered.
Regulatory Flexibility Act Certification
    13. The Regulatory Flexibility Act of 1980 (RFA) \8\ generally 
requires a description and analysis of final rules that will have 
significant economic impact on a substantial number of small 
entities.\9\ The Commission is not required to make such an analysis if 
a rule would not have such an effect. This Final Rule merely 
temporarily suspends or waives certain filings and other requirements. 
Therefore, this Final Rule will not have a significant economic impact 
on a substantial number of small entities and no regulatory flexibility 
analysis is required.
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    \8\ 5 U.S.C. 601-12.
    \9\ The RFA definition of ``small entity'' refers to the 
definition provided in the Small Business Act, which defines a 
``small business concern'' as a business which is independently 
owned and operated and which is not dominant in its field of 
operation. 15 U.S.C. 632. The Small Business Size Standards 
component of the North American Industry Classification System 
defines a small electric utility as one that, including its 
affiliates, is primarily engaged in the generation, transmission, 
and/or distribution of electric energy for sale and whose total 
electric output for the preceding fiscal years did not exceed 4 
million MWh. 13 CFR 121.201.
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Information Collection Statement
    14. Office of Management and Budget (OMB) regulations require OMB 
to approve certain information collection requirements imposed by 
agency rule.\10\ This Final Rule contains no new information 
collections. Therefore, OMB review of this Final Rule is not required.
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    \10\ 5 CFR 1320.12.
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Environmental Analysis
    15. 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. Included in 
the exclusion are rules that are clarifying, corrective, or procedural 
or that do not substantially change the effect of the

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regulations being amended.\11\ This rule is procedural in nature and 
therefore falls under this exception; consequently, no environmental 
consideration is necessary.
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    \11\ Regulations Implementing the National Environmental Policy 
Act, Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs. 
Regulations Preambles 1986-1990 ] 30,783 (1987).
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Document Availability
    16. 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 p.m. Eastern time) at 888 First Street, NE., Room 2A, 
Washington, DC 20426.
    17. From the Commission's Home Page on the Internet, this 
information is available in the 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 
FERRIS, type the docket number excluding the last three digits of this 
document in the docket number field.
    18. 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 (e-mail at 
[email protected]), or the Public Reference Room at (202) 502-
8371, TTY 202-502-8659 (e-mail at [email protected]).
Effective Date and Congressional Notification
    19. These regulations are effective on July 20, 2006. 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. The Commission finds that notice and public 
procedure are unnecessary because no new burden or regulatory 
requirement is imposed on regulated entities or the general public. For 
the same reason, the Commission finds good cause to waive the customary 
30-day notice period before the effective date of this Final Rule.

List of Subjects in 18 CFR Part 376

    Civil defense, Organization and functions (Government agencies).

    By the Commission.
Magalie R. Salas,
Secretary.

0
In consideration of the foregoing, the Commission amends part 376, 
Chapter I, Title 18, Code of Federal Regulations, as follows:

PART 376--ORGANIZATION, MISSION, AND FUNCTIONS; OPERATIONS 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. In Sec.  376.201, paragraph (a)(3) is revised and paragraph (a)(4) 
is added to read as follows:


Sec.  376.201  Emergency condition defined.

* * * * *
    (a) * * *
    (3) At a time specified by the authority of the President; or
    (4) At such time that the Commission's Continuity of Operations 
Plan is activated; and
* * * * *

0
3. In Sec.  376.204, paragraphs (b)(2)(ii), (b)(2)(v), (b)(2)(vi), 
(b)(2)(viii), (b)(2)(ix) and (b)(2)(x) are revised to read as follows:


Sec.  376.204  Delegation of Commission's authority during emergency 
conditions.

* * * * *
    (b) * * *
    (2) * * *
    (ii) Director of the Office of Energy Markets and Reliability;
* * * * *
    (v) Director of the Office of Enforcement;
    (vi) Deputy Directors, Office of Energy Markets and Reliability, in 
order of seniority;
* * * * *
    (viii) Deputy General Counsels, in order of seniority;
    (ix) Associate General Counsels and Solicitor, in order of 
seniority;
    (x) Assistant Directors and Division heads, Office of Energy 
Markets and Reliability; Assistant Directors and Division heads, Office 
of Energy Projects; Assistant General Counsels; and Assistant Directors 
and Division heads, Office of Enforcement; in order of seniority.
* * * * *

0
4. Section 376.206 is revised to read as follows:


Sec.  376.206  Delegation of functions of certain Commission staff 
members.

    When, by reason of emergency conditions, the Secretary, Director of 
any Office or Division, or officer in charge of a regional office, is 
not available and capable of carrying out his or her functions, such 
functions are delegated to staff members designated by the Chairman to 
perform such functions. If no staff member so designated is available 
and capable of carrying out their functions, such functions are 
delegated to the next subordinate employee in the Office or Division of 
the highest grade and longest period of service in that grade. If no 
subordinate employee of the Office or Division is available and capable 
of carrying out their functions, such functions are delegated to the 
Commission employee of the highest grade and longest period of service 
in that grade who is available and capable of carrying out their 
functions.

0
5. Section 376.209 is added to read as follows:


Sec.  376.209  Procedures during periods of emergency requiring 
activation of the Continuity of Operations Plan.

    (a)(1) The Commission's Continuity of Operations Plan is activated 
during emergency conditions lasting up to 30 days during which 
Commission headquarters operations may be temporarily disrupted or 
communications with the Commission's headquarters may be temporarily 
unavailable, either of which may prevent the public or the Commission 
from meeting regulatory or statutory requirements. The provisions of 
this paragraph are effective upon activation of the Plan. The 
Commission will notify the public that the Plan has been activated by 
sending a press release announcing that fact to major wire services, 
industry press, and appropriate metropolitan area radio stations 
announcing that the Commission has activated the Plan. The Commission's 
alternative Web site (http://www.fercalt.gov) will be activated and a 
notice that the Plan has been activated will be prominently displayed 
thereon. The alternative Web site will act as a resource for the press, 
industry, and general public. An additional press release will be sent 
to appropriate media outlets when the Plan is deactivated and the 
Commission's headquarters constituted, and appropriate modifications 
made to the alternative Web site.
    (2) During periods when the Continuity of Operations Plan is 
activated, the Commission will continue to 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

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safety work, in a manner consistent with the maintenance of 
environmental protections. The Commission will further ensure that its 
personnel are available to respond to plant accidents or reportable 
incidents at LNG facilities, and address dam safety, public safety, and 
security incidents at jurisdictional hydropower projects. 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, a Transmission Provider affected by the same emergency 
affecting the Commission may, for 30 days, 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 a Transmission Provider from 
posting information on the OASIS or Internet Web site, the Transmission 
Provide may, for 30 days, also delay compliance with the requirements 
of Sec.  358.4(a)(2) of this chapter to post this information on the 
OASIS or Internet Web site, as applicable. Upon application by any such 
Transmission Provider, the Commission may extend these periods.
    (c) Tolling of time periods for Commission action. The Commission 
tolls, for purposes of further consideration, the time period in which 
the Commission must act on the following matters if the time period 
during which the Commission would ordinarily be required to act closes 
during the period when the Continuity of Operations Plan is activated:
    (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 Sec.  203 of the 
FPA;
    (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;
    (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; and
    (12) Time periods for acting on interlocutory appeals and certified 
questions.
    (d) Suspension of certain requirements. During periods when the 
Commission's Continuity of Operations Plan is activated, requirements 
for the following filings, submissions, and notifications are 
suspended.
    (1) Filings to comply with Commission orders, including orders 
issued by administrative law judges;
    (2) Filings required to be made by a date certain under the 
Commission's regulations or orders;
    (3) Motions to intervene and protests, and notices of intervention;
    (4) Comments responding to proposed rulemakings or technical 
conferences;
    (5) Responses to data requests;
    (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; and
    (10) Forms required to be filed by a date certain.
    (e) Acceptance and Suspension of Rate Filings. When the date by 
which the Commission is required to act on filings made pursuant to 
section 4 of the Natural Gas Act, sections 205 of the Federal Power 
Act, and section 6(e) of the Interstate Commerce Act falls during 
periods when the Continuity of Operations Plan is activated, such 
filings shall be deemed to be accepted and suspended and made effective 
on the requested effective date, subject to refund and further order of 
the Commission.
    (f) Electric Reliability Organization Penalties. If the date on 
which an Electric Reliability Organization imposes a penalty under 
Federal Power Act Sec.  215 would take effect falls during a period 
when the COOP Plan is activated, 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. If the 
date by which a Commission determination under FPA Sec.  215 as to 
whether a State action is inconsistent with a reliability standard is 
required to be made falls during a period when the COOP Plan is 
activated, the effectiveness of the State action will be deemed to be 
stayed pending further action by the Commission.
    (h) Suspension of Evidentiary Hearings. During periods when the 
Continuity of Operations Plan is activated, all hearings, prehearing 
conferences, settlement conferences, and meetings before administrative 
law judges are suspended.
    (i) Enforcement Actions. During periods when the Continuity of 
Operations Plan is activated, the Commission will not initiate an 
enforcement action under section 210(h)(2) of the Public Utility 
Regulatory Policies Act of 1978.

[FR Doc. E6-11990 Filed 7-26-06; 8:45 am]
BILLING CODE 6717-01-P