20838 Federal Register / Vol. 76, No. 72 / Thursday, April 14, 2011 / Rules and Regulations 

1Standards of Conduct for Transmission 

Providers, Order No. 717, 73 FR 63796 (Oct. 27, 

2008), FERC Stats. & Regs. ¶ 31,280 (Order No. 717). 

2Standards of Conduct for Transmission 

Providers, Order No. 717–A, 74 FR 54463 (Oct. 22, 

2009), FERC Stats. & Regs. ¶ 31,297 (Order No. 717– 

A). 

3Standards of Conduct for Transmission 

Providers, Order No. 717–B, 74 FR 60153 (Nov. 20, 

2009), 129 FERC ¶ 61,123 (2009) (Order No. 717– 

B). On October 30, 2009, Edison Electric Institute 

(EEI) filed a request for expedited clarification of a 

single issue addressed in Order No. 717–A. The 

Commission determined that it should address this 

issue expeditiously even though the time allowed 

under the regulations for filing rehearing requests 

had not yet expired. For this reason, the 

Commission issued Order No. 717–B on November 

16, 2009, in which it addressed a single clarification 

request of EEI, Western Utilities, Otter Tail and 

III. Order 

In light of the foregoing, the 

Commodity Futures Trading 

Commission (the ‘‘Commission’’) has 

determined to issue the following Order, 

pursuant to its authority under the 

provisions of the Commodity Exchange 

Act, 7 U.S.C. 1 et seq., and in 

compliance with the Anti-Deficiency 

Act, 31 U.S.C. 1341 and 1342. 

It is hereby ordered that, in the event 

of a lapse in appropriations (also 

referred to as ‘‘shutdown’’) commencing 

at 12:01 a.m. on April 9, 2011, the 

Commission will commence operating 

according to the procedures set forth in 

this Order: 

1. Tolling and Extension of Certain 

Procedural Time Limits. The 

Commission will not officially receive 

or process any filings, or review any 

matters for Commission approval or 

action to the extent that the matters are 

not directly related to the protection of 

property or market surveillance. This 

applies to rule, rule amendment and 

contract certifications, except for 

emergency rules certified pursuant to 

regulation 40.6(a)(2); rules, rule 

amendments and contracts voluntarily 

submitted for Commission approval or 

review; requests for contract market 

designation and derivatives clearing 

organization and derivatives trade 

execution facilities registration; and 

other requests for Commission approval 

or other action. Specifically, the time 

limits for Commission action shall be 

tolled for §§ 1.47 and 1.48 of the 

Commission’s regulations, and parts 36, 

37, 38, 39, 40 and 41. Tolling also 

applies to requests and appeals 

submitted under §§ 145.7 and 145.9 of 

the Commission’s regulations, and 

requests submitted under § 140.99. 

The time for officially receiving, 

processing, or reviewing any new 

matters under these provisions of the 

Commission’s regulations shall be tolled 

until the Commission is able to resume 

full operations. For matters that are 

pending under these provisions when a 

lapse in appropriations occurs, all 

applicable time deadlines for 

Commission action will be tolled until 

the Commission is able to resume full 

operations. 

This tolling and extension of time 

limits also shall apply to certain 

procedural rules associated with 

Commission adjudicatory actions, in 

particular the time-limited procedural 

rules under parts 3, 9, 10, 12, and 171. 

For matters that are currently pending 

before the Commission under any of 

these parts, all applicable time 

deadlines for Commission action will be 

tolled until the shutdown is no longer 

in effect. Moreover, all time deadlines 

for filings by a party in an adjudicative 

proceeding that arise during a shutdown 

period will be extended until one 

business day after the Commission 

resumes its full operations. The filing of 

replies to any filing delayed by a lapse 

in appropriations will have its reply 

period extended for the same number of 

days. 

2. Procedures and Time Limits Not 

Extended or Tolled. The Commission 

will continue to receive and process 

filings required of a registered entity or 

intermediary under certain Commission 

regulations, specifically under §§ 1.10, 

1.12, 1.17, 1.32, 1.65, 30.7, and 

40.6(a)(2), or any emergency notification 

to the Commission that may be required 

by any rule of a registered entity that 

has been approved by or self-certified to 

the Commission. Paragraph 1 also shall 

not apply to filings under parts 15, 16, 

17, 18, 19, and 21 of the Commission’s 

regulations. 

3. Extension of Open Comment 

Periods on Proposed Regulation and 

Other Matters that may be Subject to a 

Request for Comment by the 

Commission. Any comment period for a 

proposed rulemaking or other matter 

that may be subject to a request for 

comment by the Commission that 

terminates during the shutdown shall be 

extended until one business day after 

the Commission resumes its full 

operations after a shutdown. 

Issued in Washington, DC, on April 8, 

2011, by the Commission. 

David A. Stawick, 

Secretary of the Commission. 

[FR Doc. 2011–9031 Filed 4–13–11; 8:45 am] 

BILLING CODE 6351–01–P 

DEPARTMENT OF ENERGY 

Federal Energy Regulatory 

Commission 

18 CFR Part 358 

[Docket No. RM07–1–003; Order No. 717– 

D] 

Standards of Conduct for 

Transmission Providers 

AGENCY: Federal Energy Regulatory 

Commission, DOE. 

ACTION: Order on rehearing and 

clarification. 

SUMMARY: The Federal Energy 

Regulatory Commission (Commission) 

issued Order No. 717–A to address 

requests for rehearing and make clearer 

the Standards of Conduct as 

implemented by Order No. 717. The 

Commission issued Order No. 717–B to 

address expedited requests for rehearing 

and clarification concerning paragraph 

80 of Order No. 717–A and whether an 

employee who is not making business 

decisions about contract non-price 

terms and conditions is considered a 

‘‘marketing function employee.’’ Order 

No. 717–C addressed requests for 

rehearing and clarification concerning 

Order No. 717–A. This order addresses 

an additional request for rehearing and 

clarification concerning Order No. 717– 

C. 

DATES: Effective Date: This rule will 

become effective May 16, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Susan Miller, Office of the General 

Counsel—Energy Markets, Federal 

Energy Regulatory Commission, 888 

First Street, NE., Washington, DC 20426. 

(202) 502–8977. 

SUPPLEMENTARY INFORMATION: 

Before Commissioners: Jon Wellinghoff, 

Chairman; Marc Spitzer, Philip D. Moeller, 

John R. Norris, and Cheryl A. LaFleur. 

Issued April 8, 2011. 

I. Introduction 

1. On October 16, 2008, the 

Commission issued Order No. 717 

amending the Standards of Conduct for 

Transmission Providers (the Standards 

of Conduct or the Standards) to make 

them clearer and to refocus the rules on 

the areas where there is the greatest 

potential for abuse.1 On October 15, 

2009, the Commission issued Order No. 

717–A to address requests for rehearing 

and clarification of Order No. 717, 

largely affirming the reforms adopted in 

Order No. 717.2 On November 16, 2009, 

the Commission issued Order No. 717– 

B to address expedited requests for 

rehearing and clarification concerning 

paragraph 80 of Order No. 717–A and 

whether an employee who is not making 

business decisions about contract nonprice terms and conditions is 

considered a ‘‘marketing function 

employee’’.3 On April 16, 2010 the 

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Federal Register / Vol. 76, No. 72 / Thursday, April 14, 2011 / Rules and Regulations 20839 

Central Vermont. All other timely requests for 

rehearing, i.e. those filed by November 16, 2009, 

were addressed in Order No. 717–C. 

4Standards of Conduct for Transmission 

Providers, Order No. 717–C, 75 FR 20909 (Apr. 22, 

2010), 131 FERC ¶ 61,045 (2010) (Order No. 717– 

C). 

5 Id. P 16. 

6 In a footnote, TAPS contends that employees 

who perform facility studies and feasibility studies 

in response to requests for interconnection service 

should be transmission function employees. TAPS, 

Motion for Rehearing at p. 3–4 n.4. TAPS concedes 

that Order No. 717–C does not address the 

performance of these types of studies. Given that 

TAPS failed to proffer this argument during 

previous stages of the process and that Order No. 

717–C does not address this issue, TAPS cannot 

raise this argument at this juncture in the 

proceeding. See, e.g., PJM Interconnection, LLC, 126 

FERC ¶ 61,030, at P 15 & n.10 (2009) (A request 

for rehearing of a new issue is outside the proper 

scope of the rehearing). See also, Wholesale 

Competition in Regions with Organized Electric 

Markets, 129 FERC ¶ 61,252, at P 9 & n.18 (2009). 

7 18 CFR 358.3(h). 

8See Order No. 717–C, 131 FERC ¶ 61,045 at P 

11–17. See also Order No. 717, FERC Stats. & Regs. 

¶ 31,280 at P 146–147. 

9Order No. 717–C, 131 FERC ¶ 61,045 at P 17. 

10 18 CFR 358.3(h). 

11 18 CFR 358.3(f). 

Commission issued Order No. 717–C to 

provide additional clarification 

concerning matters petitioners raised 

regarding the Commission’s 

determinations in Order No. 717–A.4 In 

this order, the Commission addresses an 

additional request for rehearing and 

clarification concerning Order No. 717– 

C. 

II. Discussion 

2. In paragraph 16 of Order No. 717– 

C, the Commission clarified that ‘‘a 

system impact study performed 

pursuant to a request for energy 

resource interconnection service or 

network resource interconnection 

service is similar to long-range planning 

and therefore not a transmission 

function, because the focus of such a 

study is to determine the impact of the 

proposed interconnection on the safety 

and reliability of the transmission 

provider’s transmission system, but 

without conveying a right to 

transmission service’’.5 As a result, the 

Commission concluded that the 

performance of a system impact study in 

the context of evaluating an energy 

resource interconnection service and 

network resource interconnection 

service is not a transmission function. 

3. The Transmission Access Policy 

Study Group (TAPS) requests rehearing 

and clarification of one aspect of Order 

No. 717–C. Specifically, TAPS requests 

that the Commission grant rehearing to 

hold that employees who perform 

system impact studies (or other studies) 

in connection with interconnection 

service requests are transmission 

function employees. TAPS argues that 

the consequence of a finding that 

‘‘performance of a system impact study 

in the context of evaluating an energy 

resource interconnection service and 

network resource interconnection 

service is not a transmission function’’ is 

that the studies may be performed by 

the Transmission Provider’s ‘‘merchantfunction’’ personnel. 

4. TAPS further argues that the 

Commission created an inconsistency 

with its regulatory text when it clarified 

in Order No. 717–C that the 

performance of a system impact study in 

the context of evaluating an energy 

resource interconnection service and 

network resource interconnection 

service is not a transmission function. 

Specifically, TAPS cites 18 CFR 

358.3(h), which defines ‘‘transmission 

functions’’ as ‘‘the planning, directing, 

organizing or carrying out of day-to-day 

transmission operations, including the 

granting and denying of transmission 

service requests.’’ TAPS then argues that 

because 18 CFR 358.3(f) defines 

‘‘transmission’’ as ‘‘the interconnection 

with jurisdictional transmission 

facilities,’’ employees who perform 

studies that identify upgrades needed 

for interconnection, or who otherwise 

help to determine the terms on which 

interconnection may occur, perform a 

transmission function. 

5. Alternatively, TAPS requests that 

the Commission clarify that system 

study information be treated like other 

planning information, which the 

Commission requires transmission 

providers to make available on a nondiscriminatory basis to all interested 

transmission customers. TAPS is 

concerned that if ‘‘merchant-function’’ 

personnel are permitted to conduct 

interconnection-related studies and 

have access to customer information, 

‘‘merchant-function’’ personnel would 

obtain undue competitive advantages 

over any other transmission customer. 

6. TAPS further requests clarification 

of paragraph 17 of Order No. 717–C to 

make clear that where an employee 

performs system impact studies in 

response to transmission service 

requests, the employee’s designation as 

a transmission-function employee does 

not turn on the duration of the 

requested transmission service. 

Commission Determination 

7. We deny TAPS’ request that we 

classify employees who perform system 

impact studies in connection with 

interconnection service requests as 

transmission function employees.6

Whether an employee performing a 

system impact study is a transmission 

function employee depends upon the 

purpose for which that study is being 

performed. The key factor in 

determining whether the employee is 

performing a transmission function in 

conducting the system impact study is 

whether the performance of that study 

implicates the day-to-day operation of 

the transmission system. Thus, an 

employee performing system impact 

studies that do not implicate the day-today operations of the transmission 

system would not be a transmission 

function 7 employee, even in those 

instances where the system impact 

study pertains to interconnection. 

8. In Order No. 717–C, we found that 

a system impact study performed 

pursuant to a request for energy 

resource interconnection service or 

network resource interconnection 

service is similar to long-range planning 

and therefore not a transmission 

function because it does not involve the 

conveyance of a right to transmission 

service. Contrary to the argument raised 

by TAPS, our focus in reaching this 

determination was not based on a 

distinction between transmission and 

interconnection. Our conclusion was 

based upon our finding that these types 

of system impact studies are analogous 

to transmission long range planning 

studies, and that neither type of study 

implicates day-to-day transmission 

operations.8 The performance of a 

system impact study is not a 

transmission function so long as the 

performance of this system impact study 

is not carried out as part of day-to-day 

transmission operations, including the 

granting or denying of transmission 

service.9

9. TAPS is also incorrect that the 

Commission’s clarification in Order No. 

717–C concerning the performance of 

system impact studies created an 

inconsistency with its regulatory text. 

The definition of ‘‘transmission 

functions’’ includes ‘‘the planning, 

directing, organizing or carrying out of 

day-to-day transmission operations, 

including the granting and denying of 

transmission service requests.’’10

‘‘Transmission’’ is defined to include 

‘‘the interconnection with jurisdictional 

transmission facilities.’’11 Thus, the 

definition of transmission functions 

includes the planning, directing, 

organizing or carrying out of day-to-day 

interconnection operations with 

jurisdictional transmission facilities. 

Because of the limiting phrase ‘‘day-today transmission operations,’’ TAPS is 

incorrect in its conclusion that 

‘‘transmission functions’’ always include 

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20840 Federal Register / Vol. 76, No. 72 / Thursday, April 14, 2011 / Rules and Regulations 

12Order No. 717, FERC Stats. & Regs ¶ 31,280 at 

P 151. 

13Order No. 717 specifically recognized that there 

are employees who are neither transmission 

function employees nor marketing function 

employees. See, e.g., Order No. 717, FERC Stats. & 

Regs. ¶ 31,280 at P 174 (‘‘Transmission function 

employees are no longer barred from interacting 

with all the employees of a marketing or energy 

affiliate (only marketing function employees)’’). 

14See Standards of Conduct for Transmission 

Providers, Order No. 717–A, 74 FR 54463 (Oct. 22, 

2009), FERC Stats. & Regs. ¶ 31,297, at P 27 (2009). 

interconnection-related system impact 

studies. 

10. Similarly, we deny TAPS’s request 

that the information from system impact 

studies be made available on a nondiscriminatory basis to all interested 

transmission customers. TAPS 

erroneously assumes that the 

Commission determined that system 

impact studies (or other studies) 

performed in response to 

interconnection requests are planning 

activities that may be conducted by 

marketing function employees. 

Marketing function employees may not 

perform system impact studies (or other 

studies) in response to interconnection 

requests since the studies would involve 

the use and analysis of non-public 

transmission information. As we stated 

in Order No. 717, planning personnel 

who do not qualify as marketing 

function employees may discuss 

information with transmission function 

employees.12 However, we reiterated 

that the No Conduit Rule applied in this 

situation, stating that if transmission 

employees share transmission function 

information with planning personnel, 

the planning personnel may not pass 

such information on to marketing 

function employees. The clear 

implication of these statements is that 

while planning studies may be 

conducted by personnel who are not 

transmission function employees, 

marketing function employees may not 

participate in the preparation of studies 

which involve the use and analysis of 

non-public transmission information.13

11. We grant TAPS’s clarification 

request that when an employee 

performs a system impact study in 

response to a transmission service 

request, that employee is a transmission 

function employee regardless of the 

duration of the requested transmission 

service. This clarification is consistent 

with our previous conclusion that the 

designation of an employee as a 

transmission function employee does 

not depend upon the duration of the 

requested transmission service.14

III. Document Availability 

12. 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 

FERC’s Home Page (http://www.ferc.gov) 

and in FERC’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. 

13. From FERC’s Home Page on the 

Internet, this information is available on 

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 of this document in the docket 

number field. 

14. User assistance is available for 

eLibrary and the FERC’s website during 

normal business hours from FERC 

Online Support at 202–502–6652 (toll 

free at 1–866–208–3676) or e-mail at 

ferconlinesupport@ferc.gov, or the 

Public Reference Room at (202) 502– 

8371, TTY (202) 502–8659. E-mail the 

Public Reference Room at 

public.referenceroom@ferc.gov. 

IV. Effective Date 

15. Changes to Order No. 717–C 

adopted in this order on rehearing and 

clarification are effective May 16, 2011. 

By the Commission. 

Kimberly D. Bose, 

Secretary. 

[FR Doc. 2011–9059 Filed 4–13–11; 8:45 am] 

BILLING CODE 6717–01–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Food and Drug Administration 

21 CFR Part 878 

[Docket No. FDA–2011–N–0188] 

Medical Devices; General and Plastic 

Surgery Devices; Classification of the 

Low Level Laser System for Aesthetic 

Use 

AGENCY: Food and Drug Administration, 

HHS. 

ACTION: Final rule. 

SUMMARY: The Food and Drug 

Administration (FDA) is classifying the 

low level laser system for aesthetic use 

into class II (special controls). The 

special control(s) that will apply to the 

device is entitled ‘‘Class II Special 

Controls Guidance Document: Low 

Level Laser System for Aesthetic Use.’’ 

The Agency is classifying the device 

into class II (special controls) in order 

to provide a reasonable assurance of 

safety and effectiveness of the device. 

Elsewhere in this issue of the Federal 

Register, FDA is announcing the 

availability of a guidance document that 

will serve as the special control for this 

device type. 

DATES: This rule is effective May 16, 

2011. The classification was effective on 

August 24, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Richard Felten, Center for Devices and 

Radiological Health, Food and Drug 

Administration, 10903 New Hampshire 

Ave., Bldg. 66, Rm. 1436, Silver Spring, 

MD 20993–0002, 301–796–6392. 

SUPPLEMENTARY INFORMATION: 

I. What is the background of this 

rulemaking? 

In accordance with section 513(f)(1) of 

the Federal Food, Drug, and Cosmetic 

Act (the FD&C Act) (21 U.S.C. 

360c(f)(1)), devices that were not in 

commercial distribution before May 28, 

1976 (the date of enactment of the 

Medical Device Amendments of 1976), 

generally referred to as postamendments 

devices, are classified automatically by 

statute into class III without any FDA 

rulemaking process. These devices 

remain in class III and require 

premarket approval, unless and until 

the device is classified or reclassified 

into class I or II, or FDA issues an order 

finding the device to be substantially 

equivalent, in accordance with section 

513(i) of the FD&C Act, to a predicate 

device that does not require premarket 

approval. The Agency determines 

whether new devices are substantially 

equivalent to predicate devices by 

means of premarket notification 

procedures in section 510(k) of the 

FD&C Act (21 U.S.C. 360(k)) and 21 CFR 

part 807 of the regulations. 

Section 513(f)(2) of the FD&C Act 

provides that any person who submits a 

premarket notification under section 

510(k) of the FD&C Act for a device that 

has not previously been classified may, 

within 30 days after receiving an order 

classifying the device into class III 

under section 513(f)(1) of the FD&C Act, 

request FDA to classify the device under 

the criteria set forth in section 513(a)(1) 

of the FD&C Act. FDA will, within 60 

days of receiving this request, classify 

the device by written order. This 

classification will be the initial 

classification of the device. Within 30 

days after the issuance of an order 

classifying the device, FDA must 

publish a notice in the Federal Register 

announcing this classification. 

In accordance with section 513(f)(1) of 

the FD&C Act, FDA issued an order on 

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